Demonstration End User
This Demonstration End User License Agreement ("License”) is a contract between you, the individual installing, accessing or commencing the use of the Software, materials, and/or services (“Licensee”), and MessageOne, LLC ("Licensor"), and governs the use of the Software. The License granted hereunder is conditioned upon Licensee’s acceptance of the terms set forth herein.
For purposes of this License, “Software” means the demonstration version of the Kayako software, any third party software and any online or web-based functionality licensed by Licensor to Licensee pursuant to this License.
IMPORTANT NOTICE -- PLEASE REVIEW CAREFULLY
IF LICENSEE DOES NOT ACCEPT THE TERMS OF THIS LICENSE, LICENSEE SHOULD NOT ACCESS THE SOFTWARE. THE USE OF THE SOFTWARE INVOLVES DOWNLOADING AND INSTALLING CERTAIN THIRD-PARTY SOFTWARE OR CHROME EXTENSIONS. SUCH THIRD-PARTY SOFTWARE MAY GATHER INFORMATION REGARDING HOW LICENSOR INTERACTS WITH THE SOFTWARE. LICENSEE ASSUMES ALL RISKS ASSOCIATED WITH THE DOWNLOAD AND INSTALLATION OF SUCH THIRD-PARTY SOFTWARE.
THE SOFTWARE IS FOR DEMONSTRATION PURPOSES ONLY. LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING THE SUITABILITY OF THE SOFTWARE FOR LICENSEES SPECIFIC NEEDS. THE SOFTWARE AS ACCESSED FOR DEMONSTRATION PURPOSES IS CONFIGURED TO SHOW THE GENERAL CAPABILITIES OF THE SOFTWARE. THE SOFTWARE PERFORMANCE MAY VARY DEPENDING ON LICENSEE’S CONFIGURATION REQUIREMENTS AND OPERATING ENVIRONMENT. LICENSEE IS SOLELY RESPONSIBLE FOR DETERMINING WHETHER THE SOFTWARE MEETS THE REQUIREMENTS OF LICENSOR.
1. LICENSE, INSTALLATION AND USE: If Licensee accepts this License, and as long as Licensee complies with the terms of this License, Licensor grants Licensee a non-exclusive and nontransferable license to access and use the Software in machine-readable form on any Licensee device for demonstration and evaluation purposes only, subject to the limitations and restrictions set forth in this License. Licensor makes no guarantee of access to the Software and may terminate access without warning.
2. TRANSFER: Licensee may not sell, rent, lease, loan or sublicense the Software.
3. LIMITATIONS ON USE: Licensee agrees not to, and not to permit others to, directly or indirectly (a) reverse assemble, reverse compile, or otherwise reverse engineer or attempt to derive the source code of all or any part of the Software, (b) copy, modify, translate, alter, change, or collect information that can be used to create derivative works of all or any part of the Software, (c) download, copy or collect information that could be used to copy all or any part of the Software, or access or use all or any part of the Software for any purpose other than for the evaluation and demonstration of the Software.
4. OWNERSHIP OF INTELLECTUAL PROPERTY: Licensor reserves all rights in the Software not expressly granted to Licensee in this License. Licensee acknowledges and agrees that Licensor or its third-party licensors own all rights, title and interest in and to the Software (including, without limitation, all software, code, interfaces, text, and graphics incorporated therein and any related user guides and documentation), the trademark Kayako, the URLs, and other marks related to Licensor’s products and URLs such as https://chicago.kayako.com/ and the trade dress, and look and feel of the Software, all of which are covered by various protections including, without limitation, copyright, trademark, and trade secrecy law. If Licensee suggests new features or functionality that Licensor, in its sole discretion, adopts for the Software, such new features or functionality will be the sole and exclusive property of Licensor and any and all claims of Licensee as to the same are hereby waived and released. Licensor reserves the right, in its sole discretion and without incurring any liability to Licensee, to update, improve, replace, modify or alter the specifications for and functionality of all or any part of the Software from time to time.
5. DISCLAIMER OF WARRANTIES: LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SOFTWARE AND ANY THIRD-PARTY SOFTWARE DOWNLOADED AND INSTALLED BY LICENSEE IS AT LICESEE’S SOLE RISK. THE SOFTWARE AND PROVIDED HEREUNDER IS PROVIDED "AS IS", WITHOUT WARRANTIES OR PROMISES, WHETHER EXPRESS OR IMPLIED, OR BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE. THE ENTIRE RISK AS TO THE SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT OF SUCH SOFTWARE (IF ANY) SHALL BE WITH LICENSEE. THERE IS NO REPRESENTATION OR WARRANTY HEREIN AGAINST INTERFERENCE WITH LICENSEE’S ENJOYMENT OR AGAINST INFRINGEMENT. LICENSOR AND ITS THIRD PARTY LICENSORS DISCLAIM ANY AND ALL OTHER EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SOFTWARE AND THIRD PARTY SOFTWARE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, NON-INFRINGEMENT, OR THAT LICENSEE’S USE OF THE SOFTWARE WILL BE UNINTERUPTED, VIRUS-FREE, OR ERROR-FREE. LICENSEE ACKNOWLEDGES THAT NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES ARE MADE BY ANY THIRD-PARTY LICENSORS HEREIN.
6. EXCLUSIVE REMEDIES: ANY LIABILITY OF LICENSOR FOR DAMAGES RESULTING FROM THE USE OF THE SOFTWARE OR ANY THIRD-PARTY SOFTWARE WILL BE LIMITED EXCLUSIVELY TO FIVE HUNDRED DOLLARS ($500.00).
7. LIMITATIONS OF LIABILITY: IN NO EVENT WILL LICENSOR OR ITS THIRD PARTY LICENSORS OR ANY OTHER PERSON OR ENTITY BE LIABLE TO LICENSEE FOR (A) ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES, INCLUDING ANY LOSSES RELATING TO LICENSEE, OR LICENSEE’S BUSINESS, SUCH AS LOST DATA, LOST PROFITS, BUSINESS INTERRUPTION, OR LOST SAVINGS, EVEN IF LICENSOR OR ITS THIRD PARTY LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) ANY CLAIM BY ANY THIRD PARTY. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, SO THE FOREGOING LIMITATIONS MAY NOT APPLY. IF LICENSEE COULD HAVE AVOIDED DAMAGES BY TAKING REASONABLE CARE, NEITHER LICENSOR NOR ITS THIRD-PARTY LICENSORS WILL BE LIABLE FOR SUCH LOSSES. IN NO EVENT SHALL LICENSOR OR ITS THIRD-PARTY LICENSORS’ TOTAL LIABILITY FOR ALL DAMAGES (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EXCEED FIVE HUNDRED DOLLARS ($500.00).
8. TERMINATION AND SURVIVAL:
This License is effective until terminated. By accessing and running the Software, Licensee authorizes Licensor to immediately terminate Licensee’s rights, without notice, under this License, if Licensee fails to comply with the terms of this License. Upon termination of this License, Licensee must immediately cease all use of the Software.
The provisions of Sections 4, 5, 7, 8, 9, 10, 11 and 12 shall survive the termination of this License for any reason, but this sentence shall not imply or create any continued right to use the Software after termination of this License.
9. GOVERNING LAW AND FORUM:
This License will be governed in all respects, by and construed in accordance with the laws of the State of Texas, United States, without reference to its principles relating to conflicts of law. Licensor and Licensee agree that any action arising out of or related to this License must be brought exclusively in a United States state or Federal court in the state of Texas. Licensor and Licensee consent to the personal jurisdiction of the state of Texas and acknowledge that venue is proper in any United States state or Federal court in the state of Texas. Licensee and Licensor each waive any objection it has or may have in the future with respect to the foregoing.
This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
Notwithstanding the above, Licensor shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against Licensee in the event that, in the opinion of Licensor, such action is necessary or desirable.
10. ENTIRE AGREEMENT, TRANSLATION, ASSIGNMENT:
A. Except as expressly provided herein, this License constitutes the entire agreement between the parties with respect to the use of the Software and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this License, or action, or delay, will be binding unless in writing and signed by Licensor.
B. In the event of a dispute between the English and any translated version, the English version of this License shall prevail.
C. Licensor may assign this License, in whole or in part, at any time with or without notice to Licensee. Licensee may not assign, delegate or otherwise transfer this License, or assign, transfer or sublicense any rights in the Software.
11. SEVERABILITY: All provisions of this License apply to the maximum extent permitted by applicable law. If any part of this License is determined to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this License will continue in effect.
12. EXPORT: Licensee acknowledges that the Software is subject to U.S. export jurisdiction. Licensee agrees to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations and Office of Foreign Assets Control Regulations, as well as end-user, end-use, and destination restrictions issued by United States and other governments.
13. FORCE MAJEURE: No failure or omission by either party to carry out or observe any of the terms and conditions of this License (other than payment obligations) shall give rise to any claim against such party or be deemed a breach of this License if such failure or omission arises from an act of God or any other force majeure, an act of any government, or any other cause beyond the reasonable control of the affected party.
14. WAIVER: Failure by either Licensee or Licensor to insist upon strict compliance with any of the terms, covenants, or conditions of this License shall not be deemed a waiver of that term, covenant, or condition or of any other term, covenant, or condition of this License. Any waiver of relinquishment of any right or power hereunder at any one or more times shall not be deemed a waiver or relinquishment of that right or power at any other time.
Last Revised: May 28, 2020